Read the full judgment text of HCA 1106/2011 on BabelCite. This Court of First Instance judgment was delivered on 6 March 2013 before Hon G. Lam J.
Civil procedure – amendment of pleadings – leave to amend – Limitation Ordinance (Cap 347) s 20(1)(b) – beneficiary's action to recover trust property in the possession of the trustee – property dispute between siblings – registered owner vs. person in occupation – Whether leave to amend should be granted to allow a defendant to raise a limitation defence shortly before trial – Held: Yes, where the new plea is not utterly unarguable, raises a pure point of law on existing facts, and causes no demonstrated prejudice – Whether s 20(1)(b) requires the trustee to be in physical possession of the property, or whether power of control suffices – Court expressed considerable doubt about the Defendant's narrow interpretation – Thorne v Heard [1894] 1 Ch 599 supports the view that power of control over the property is sufficient, and In re Timmis [1902] 1 Ch 176 and In re Howlett [1949] 1 Ch 767 do not clearly establish the contrary – The substantive question of whether the s 20(1)(b) exception applies is left for trial – Defendant granted leave to amend her defence to plead that the Plaintiff's claim is time-barred.
Legal issues: Leave to amend defence to raise limitation plea · Interpretation of s 20(1)(b) Limitation Ordinance – whether physical possession by trustee is required
Outcome: Leave to amend granted to the Defendant; the substantive limitation plea is left to be argued at trial.
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